These Service Terms and Conditions govern the services identified in the order form executed by Client and Linkroom™ that references these Service Terms and Conditions (the “Order Form”). Any capitalized terms used but not defined in these Service Terms and Conditions will have the meanings specified in the Order Form.
2.1. Provision of Services. Linkroom™ agrees to provide Client with the implementation, consulting, customization, support, and/or other professional services, if any, specified in the Order Form (the “Implementation Services”) in support of Client’s authorized use of the cloud-based services also identified in the Order Form (the “Cloud Services”), subject to Client’s timely payment of all corresponding fees.
2.2. Client Cooperation and Content. Client will provide cooperation and assistance as reasonably requested by Linkroom™ to facilitate the performance of any such Implementation Services. This cooperation will include furnishing any Client-specific graphics, logos, or other content to be used by Linkroom™ in customizing any end-user dashboard or performing any other Implementation Services specifically for Client (the “Client Content”).
2.3. Contacts. Each party will designate in writing the individual who will be its primary point of contact for matters relating to any Implementation Services to be performed thereunder. A party may designate replacement contacts by written notice to the other party.
2.4. Access to Client Facilities. If any Implementation Services are to be performed on Client’s premises, or involve access to Client’s secure networks or systems, the personnel performing those services will comply with such security, safety and confidentiality policies as Client may reasonably specify in writing.
2.5. Work Product. If the Implementation Services involve the creation of any threedimensional digital models for augmented-reality use (each, an “Asset”) or the delivery of analytics, reports, documents, or other deliverables (“Deliverables”), Client may use them as set forth in Sections 6.3 and 6.4 below. Client acknowledges that the Implementation Services do not involve any custom development work, and Linkroom™ retains ownership of the work product and associated intellectual property rights, as more fully described in Section 6.1, subject to Client’s rights in its Client Content.
3.1. Authorization. Subject to Client’s compliance with the terms and conditions of this Agreement, including its payment of all applicable fees, Linkroom™ authorizes Client to access and use the Cloud Services, during the Client’s paid-up subscription period set forth in the Order Form (and any Renewals under Section 4.1), solely for Client’s creation, management, storage, and retrieval of Assets in accordance with Linkroom™’s relevant end-user documentation.
3.2. Authorized Users. Client may access and use the Cloud Services only through its individual employees or contractors who have been assigned unique access credentials under Client’s account for the Cloud Services (“Authorized Users”). Client will not permit access to or use of the Cloud Services by anyone other than such Authorized Users. Authorized Users may not share their access credentials with any other individuals.
3.3. Limits. Client’s access to and use of the Cloud Services are subject to any limitations indicated in the Order Form (or in any project plan referenced in the Order Form), and may include, for example, limits on bandwidth, storage, or the number of named and/or concurrent Authorized Users. Client will comply with all such access and usage limits.
3.4. Client Responsibilities. Client is responsible for (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with Client’s account; (ii) all activities that occur with respect to Client’s account; (iii) its and its Authorized Users’ use of the Cloud Services and compliance with this Agreement; (iv) all Client Content; and (v) obtaining all third-party licenses, consents, and other permissions in relation to the Client Content and the Assets (and the items represented by the Assets) as needed for Client and Linkroom™ to perform their respective activities contemplated under this Agreement. Client will hold Linkroom™ harmless from any claims or liability arising from any of the foregoing matters.
3.5. Restrictions. Client will not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Cloud Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of the Cloud Services, or use any of the Cloud Services for time sharing or similar purposes for the benefit of any third party; (iii) remove any copyright or proprietary notices contained in the Cloud Services or any output thereof; (iv) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Cloud Services; (v) access the Cloud Services via any bot, web crawler or non-human user; or (vi) access or use (or permit a third party to access or use) the Cloud Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Cloud Services or for any other benchmarking or competitive purposes.
3.6. Security Measures. Linkroom™ will employ commercially reasonable environmental,safety and facility procedures, data security procedures and other safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of the Cloud Services and any Assets or Client Content stored on Linkroom™’s servers.
4.1. Duration and Renewal. Unless terminated as provided below, this Agreement will remain in effect throughout the subscription term specified in the Order Form and, if applicable, any renewal or extension period as agreed by the parties in writing (each, a “Renewal”). Neither party is required to agree to any Renewal.
4.2. Termination. A party may terminate this Agreement for a material breach by the other party that remains uncured more than 30 days after receiving written notice of the breach. In addition, Linkroom™ may terminate this Agreement 10 business days following Client’s receipt of written notice that it is late in paying an invoice.
4.3. Survival. The following provisions will survive expiration or termination of this Agreement: Sections 1, 4.3, 5 (to the extent of any outstanding payments), 6, 7, 8, 9 and 11.
5.1. Fees. In consideration for Linkroom™ providing any agreed-upon Implementation Services and Cloud Services for the initial subscription period, Client shall pay to Linkroom™ the corresponding fees as set forth in the Order Form. Client acknowledges
that such fees may depend on the number of Assets uploaded to the Cloud Services under Client’s account, and/or other access or usage metrics, as specified in the Order Form.
5.2. Renewal Fees. For each subscription Renewal, if any, Client will pay for the Cloud Services consistent with the rates and metrics specified in the Order Form or, if applicable, such other rates and metrics as Linkroom™ may establish by written notice
to Client at least 30 days prior to the Renewal. If usage of the Cloud Services under Client’s account exceeds the allowances associated with the original subscription fees, then (without limiting Linkroom™’s other remedies) the Renewal fees will be increased to cover the additional usage at Linkroom™’s applicable rates.
5.3. Invoices Payment. Linkroom™ will invoice Client on the schedule set forth in the Order Form. If not otherwise specified in the Order Form, any fixed fees for Implementation Services or Cloud Services (such as any flat subscription fee) may be invoiced at the beginning of the service or subscription period to which they apply, and variable fees (such as any per-Asset usage fees) will be invoiced on a monthly basis in arrears. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law.
5.4. Taxes. The fees specified in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, any value-added tax) (collectively, “Taxes”). Client shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Linkroom™’s net income. Such Taxes will be itemized in the applicable invoice.
6.1. Linkroom™ Property. As between Linkroom™ and Client, the Cloud Services and all software and other technologies embodied in or used to provide the Cloud Services, and all intellectual property rights therein or relating thereto, are and shall remain
exclusively the property of Linkroom™. If Linkroom™ performs any development work in relation to the Cloud Services or its other products, services, or technologies, whether or not as part of the Implementation Services, and including the creation of any
applications or other software in response to Client’s requests or suggestions, Linkroom™ solely retains all intellectual property rights arising from such development work, and Client’s rights in the same are limited to the access and usage rights expressly granted in Section 3 for the Cloud Services in which such developments may be implemented.
6.2. Client Content. Client retains all of its ownership and other rights in the Client Content. Client authorizes Linkroom™ to use, reproduce, distribute, display, perform, modify, and adapt the Client Content for purposes of providing services to Client, but for no other purpose unless separately authorized by Client.
6.3. Assets. During the term of Client’s Cloud Services subscription, Client may use, display, and distribute (to Client’s customers, prospective customers, and other third parties) all Assets created and/or uploaded to the Cloud Services under Client’s
account, subject to Client’s payment of all applicable fees. Linkroom™ will not use or distribute such Assets (as created by or for Client) for its other clients without Client’s consent.
6.4. Deliverables. Client may use any Deliverables furnished under this Agreement for its internal business purposes in connection with its authorized use of the Cloud Services, and may make a reasonable number of copies in support of such use. To the extent such Deliverables are, by their nature, intended for distribution to Client’s customers, prospective customers or other third parties (for example, where the Deliverable is an online storefront or similar public-facing application), Linkroom™ grants to Client a non-exclusive license to distribute and display the same for such intended purpose in connection with Client’s authorized use of the Cloud Services and subject to its payment of all applicable fees. Except as provided above, Client will not redistribute any Deliverables without the prior written approval of Linkroom™.
6.5. Feedback. To the extent that Client provides Linkroom™ with any suggestions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the Cloud Services or Linkroom™’s other technologies, products, or services (collectively, “Feedback”), Client hereby assigns and agrees to assign to Linkroom™ all right, title and interest in and to such Feedback, including any intellectual property rights therein, and agrees that Linkroom™ will be free to use such Feedback in any manner, including by implementing such Feedback in the Cloud Services and/or Linkroom™’s other technologies, products, and services, without compensation or other obligations to Client. Client further agrees that Linkroom™ may collect and use any data transmitted to the Cloud Services to develop, improve, and test the Cloud Services. For purposes of assisting Linkroom™ in improving the Cloud Services, Client agrees to provide Feedback regarding any errors or other issues with the Cloud Services and as Linkroom™ may otherwise request from time to time.
7.1. Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Agreement that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for
the purpose of fulfilling its obligations or exercising its rights expressly granted under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
7.2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
8.1. Early Release. Client acknowledges that: (i) the Cloud Services are currently in beta or other pre- or early-release form and are subject to change; (ii) the Cloud Services may contain errors, design flaws or other problems that may or may not be corrected;
8.2. No Warranties. THE CLOUD SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. LINKROOM™
DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9.1. Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Liability Cap. THE TOTAL LIABILITY OF LINKROOM™ FOR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO LINKROOM™ UNDER THIS AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
9.3. Exceptions. Nothing in this Section 9 shall limit or waive a party’s: (i) liability for any breach of its confidentiality obligations under this Agreement; or (ii) liability for its infringement or misappropriation of any proprietary rights of the other party.
10.1. Press Releases. Neither party will issue any press release or similar publicity regarding the parties’ relationship under this Agreement without the other’s written approval.
10.2. Identification of Client. Linkroom™ may identify Client, by name and (upon Client’s approval) by logo, as a customer of the Cloud Services on Linkroom™’s website and other marketing materials.
10.3. Case Study. Provided Client is satisfied with the Cloud Services, Linkroom™ may develop a case study for public dissemination and marketing use by Linkroom™ describing the benefits Client has derived from the Cloud Services. Client will reasonably cooperate with such case study. Publishing will be subject to Client’s prior written approval, not to be unreasonably withheld.
11.1. Notices. All notices permitted or required under this Agreement shall be in writing, will reference this Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
11.2. Assignment. Client may not assign this Agreement without Linkroom™’s prior written consent, which will not be unreasonably withheld. Any attempt by Client to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
11.3. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
11.4. Compliance. Client agrees to comply fully with all laws and regulations applicable to its business and its use of the Cloud Services.
11.5. Government Rights. If Client is the U.S. government or any agency or other division thereof, Linkroom™’s services are furnished under this Agreement as a “commercial item,” as that term is defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to the services (and to any associated software, technical data or other materials) are limited to those expressly granted in this Agreement.
11.6. Severability. If any part of this Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
11.7. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
11.8. Governing Law. This Agreement will be governed by the laws of the State of Washington, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the State of Washington.
11.9. Entire Agreement. No amendment or modification to the Agreement will be binding unless in writing signed by both parties. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding its subject matter.
11.10. Counterparts. This Agreement may be executed in counterparts, including by electronic transmission, each of which will be deemed an original, but all of which together will constitute one and the same instrument.